Is Entrapment a Defense to a California DUI?


There are two situations that lead many people to wonder whether entrapment can be used to defend against a California DUI charge; DUI sobriety checkpoints and when law enforcement wait outside of a bar hoping to catch a drunk driver.
 
 
In nearly all circumstances, the answer is no.
 
Entrapment occurs when law enforcement compels a person to do something they would not have otherwise done. In other words, in the context of a California DUI, law enforcement would have to compel a person to drink and/or compel them to drive when that person would not have otherwise done either. 
 
Although this is extremely unlikely, it can and has occurred. For example, if an officer discovers an intoxicated individual in a vehicle and subsequently requires them to drive, entrapment has occurred. The person would not have driven while drunk but for the officer’s order. 
 
As for DUI checkpoints, while it may be viewed as a “trap,” it is not entrapment. Without delving into the constitutionality of checkpoints, nothing about a checkpoint compels a person to neither drink nor drive. 
 
Nor is it entrapment when law enforcement wait outside of a bar hoping to catch a drunk driver leaving the bar. When officers wait outside of a bar, they are in a public place and merely observing people drive who may be drunk. Officers have not compelled people leaving a bar to neither drink nor drive. 
 
Now, the officer must have probable cause to believe that a person is driving drunk before an arrest can be made. The mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI. 
 
While the purpose of both DUI checkpoints and bar-stakeout is certainly to “trap” drunk drivers, neither constitutes entrapment. 
 
 
 
 
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